Fifth Circuit Approves Removal of Confederate Statues

NEW ORLEANS (CN) – The Fifth Circuit upheld a request Monday to remove the statues of Robert E. Lee, Jefferson Davis and two other Confederate heroes from New Orleans city property.

The federal appeals court said in its brief, unsigned ruling that opponents of removing the statues hadn’t proved they’d suffered irreparable harm if the removal came to pass, and that the lower court’s ruling on the matter “is affirmed for essentially the same reasons.”

The March 6 ruling touches briefly on the specific reasons the ruling was upheld.

First, the three-judge panel said, the plaintiffs did not prove they have any real claim on the monuments or on the land on which the monuments sit.

“Although appellants implied at oral argument that the ownership of the monuments and land on which they sit may be uncertain,” the ruling says, “we have exhaustively reviewed the record and can find no evidence in the record suggesting that any party other than the City has ownership.”

Next, the judges said, the lower court said it accepted the city’s assurances it will remove the monuments from their current locations only; not destroy them, and that only qualified contractors would be selected for the removal.

“We do not pass on the wisdom of this local legislature’s policy determination, nor do we suggest how states and their respective political subdivisions should or should not memorialize, preserve, and acknowledge their distinct histories,” the ruling says. “Wise or unwise, the ultimate determination made here, by all accounts, followed a robust democratic process.”

The Fifth Circuit also found plaintiffs had “failed to put forward even a prima facie showing in support of their two claims that this federal court must interfere with this local political process, which required consideration of heated and disagreeing viewpoints.”

The plaintiffs – the Louisiana Landmarks Society, the Foundation for Historical Louisiana, the Monumental Task Force Committee, and Beauregard Camp No. 130, a chapter of the Sons of Confederate Veterans – filed a lengthy lawsuit in December 2015 after New Orleans Mayor Mitch Landreiu signed a controversial ordinance saying the four prominently placed monuments celebrating Confederate heroes should be removed.

Franklin Jones, an attorney for plaintiffs, later argued before U.S. District Judge Carl Barbier that the statues should be preserved on the basis of their artistic merits.

“These are priceless works of art,” Jones said. “These are not just monuments you wrap a sling around and move” to another location.

Less than 10 days later, Judge Barbier issued the 63-page ruling in which he said the city owns the land the monuments are on and could do whatever it wanted with them.

A contractor hired to remove the statues immediately after the ruling pulled out after his family reportedly received death threats and his car was torched.

The plaintiffs then appealed to the Fifth Circuit, which temporarily enjoined the city from any action until the court could consider the merits of the case.

During arguments before the Fifth Circuit last September, the plaintiffs argued in part that the city had alienated the public by even considering the monuments’ removal.

“The city is, and has, alienated the public,” the attorney said. “The city has no idea how it’s going to take [the monuments] down. The city has no plan to take the monuments down. No plan in place.”

But supporters of the city’s plan have also argued that leaving the statues in place will harm the public.

Deputy City Attorney Adam Swensek told the Fifth Circuit that all parties must be prepared for public anger and its consequences if the judges ruled the monuments could not come down.

Swensek conceded members of the public could claim they were injured by the removal of the monuments if they could not see them elsewhere, but he warned the court that if they were not taken away, there was a very good chance they’d be vandalized.

“When folks are denied the democratic process, they seek other ways to [seek justice],” Swensek said. “This poses a risk to property.”

In June 2015, after Dylann Roof killed nine and wounded three others in an historically black church in Charleston, South Carolina, officials in several southern cities called for the removal of Confederate flags and other symbols from government properties.

“There may have been a time when that monument reflected who we are as a city, but times change. And so do we,” said Mayor Landrieu when he added his voice to the growing chorus.

The monuments include a 60-foot-tall marble column and statue dedicated to Gen. Robert E. Lee; a large statue of Louisiana-born Confederate general P.G.T. Beauregard on horseback; a statue of Confederate President Jefferson Davis; and an obelisk dedicated to white supremacists who wanted to overthrow the biracial New Orleans reconstruction government.

Judge Patrick Higginbotham, an appointee of President Ronald Reagan sat on the Fifth Circuit panel along with Judge Jennifer Walker Elrod, an appointee of President George W. Bush, and Judge Stephen Higginson, a nominee of President Barack Obama.

Within hours of Monday’s ruling the city began looking for a contractor who can safely perform removal.

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